GAL Construction, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD GAL Construction, Inc., and Barry Kapusta. Case 6 CA- 10606 November 9, 1978 DECISION AND ORDER BY CHAIRMAN FANNING( AND MIEMBERS JENKINS AND MEURPIIY On September 5, 1978, Administrative Law Judge Leonard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and counsel for the General Counsel filed an answering brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge, to modify his remedy.2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, GAL Construction, Inc., Charleroi, Pennsylvania, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for rationale on interest payments. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: This case was heard at Pittsburgh, Pennsylvania, on June 15, 1978, pursuant to a complaint issued December 19, 1977, alleging that Respondent, GAL Construction, Inc., vio- lated Section 8(aX)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), referred to herein as the Act. Respondent, in its timely filed answer, denied committing any of the alleged unfair labor prac- tices. Upon the entire record in the case, including my obser- vation of the witnesses, and upon consideration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, a Pennsylvania corporation, with its princi- pal office located in Charleroi, Pennsylvania, is engaged in road and coal mine construction. During the 12 months preceding the issuance of the complaint herein, in the course and conduct of its business operations, Respondent has performed services within the Commonwealth of Penn- sylvania valued in excess of $50,000 for persons who are themselves directly engaged in interstate commerce. In its answer, Respondent admitted, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED Respondent concedes, and I find, as alleged in the com- plaint, that United Mine Workers of America, Local 1846, referred to as the Union or UMW Local 1846, is now, and has been at all times material to this case, a labor organiza- tion within the meaning of Section 2(5) of the Act. 111. THE ISSUES On or about May 1, 1977,1 Respondent's employee, Bar- ry Kapusta, the Charging Party herein, filed a grievance against Respondent concerning wage rates he alleged were due him under a collective-bargaining agreement with the Union. On May 2 Respondent and the Union held a griev- ance meeting at which Kapusta's grievance was resolved. The issues presented in this case are whether the evidence shows that Respondent: (a) Violated Section 8(a)(1) of the Act by coercively in- terrogating employee Kapusta concerning the filing of grievances, threatening him with reprisals if he filed griev- ances, and by ordering him to resign from the Union. (b) Violated Section 8(aX3) and (1) of the Act by refus- ing to assign to employee Kapusta work covered by a col- lective-bargaining agreement and by refusing to pay him the wage rate provided for by said contract because he filed a grievance. (c) Violated Section 8(aX5) and (1) of the Act by refus- ing to comply with a grievance settlement. I All dates referred to hereinafter occurred in 1977, unless otherwise indi- cated 234 GAL CONSTRUCTION, INC. IV THE ALLF.GED UNFAIR LABOR PRACTICES A. Background Between January and May Respondent employed ap- proximately four truckdrivers, who picked up building ma- terials and equipment, delivered them to Respondent's var- ious jobsites, and carted away refuse from those sites. Of the four truckdrivers, two, Barry Kapusta and William Barr, were members of UMW Local 1846 during 1977. Barr's membership in UMW Local 1846 dated from Au- gust or September 1976. Kapusta joined UMW Local 1846 in November 1976, at the instance of his supervisor. An- drew Witouski. Respondent classified Barr as a class "B" driver, due to his ability to handle all kinds of heavy equip- ment. Kapusta drove only triaxle tractor-trailer and stake body trucks and was therefore given the lower class "C" rating. Respondent and UMW Local 1846 were parties to the National Coal Mine Construction Agreement (referred to herein as NCMCA) which was effective from December 23, 1974, to December 6. Respondent's employees who per- formed construction work at UMW coal mine sites were covered by article II, section (a), of this agreement, which required them to be members of the Union. Article I of that agreement limited its coverage as follows: This Agreement covers all work related to the devel- opment, expansion or alteration of coal mines, includ- ing the erection of tipples and preparation plants and other facilities placed in, on or around coal mines, sinking of shafts, slopes, drifts, or tunnels and all other such coal-related work that is performed by members of the Association at or on coal lands, coal producing and coal preparation facilities owned or held under lease by signatories to the National Bituminous Coal Wage Agreement of 1974 or any of them or by any subsidiary or affiliate on the date of this Agreement, or acquired during its term which may hereafter (dur- ing the term of this Agreement) be put into production or use. GAL's employees working at construction projects not lo- cated at UMW coal mine sites were represented under other contracts by various AFL-CIO building and con- struction trades unions, including the International Union of Operating Engineers, Local 66, AFL-CIO. Some GAL employees were members of both UMW Local 1846 and an AFL-CIO union. Respondent assigned such dual union members to work on UMW and AFL-CIO union jobsites interchangeably. In March 1977 Kapusta questioned Charles (Buck) Rush, UMW Local 1846's president and business manager, concerning some medical bills which Kapusta thought should be covered by the UMW Local 1846 medical insur- ance plan. Rush informed Kapusta that Respondent had not made any benefit payments to the Union for Kapusta. Rush asked Kapusta what hourly wage rate he had been receiving and discovered that Kapusta was being paid a $5.07 hourly wage rather than the $7.58 hourly rate called for by the collective-bargaining agreement. At a later meet- ing, Rush advised Kapusta to file a grievance. Kapusta attempted unsuccessfully to resolve the wage rate discrep- ancy with Supervisor Witouski. On May I Kapusta filed a grievance concerning his hourly wage rate. B. The Alleged Refusal to Bargain 1. The facts On the afternoon of May 2, Respondent and the Union conducted a grievance meeting. Tony Ruscitto, Respon- dent's secretary, and Supervisor Witouski represented Re- spondent. Rush represented the Union. Kapusta also was present. Truckdriver Barr was present at Rush's request, because in Rush's initial contact with Kapusta, Kapusta had charged that Barr was not receiving the proper wage rate. Barr remained at the meeting only a short time. He left after informing the parties that his rate was already straightened out and that he was receiving the proper rate. The parties discussed Kapusta's wage rate at length. The Union argued that under the NCMCA, employees working at mining sites operated by companies signatory to that contract were entitled to receive the contract wage rate. As Respondent was a party to the NCMCA and Kapusta had been working at Respondent's mining sites, Rush contend- ed that Kapusta should have been paid the $7.58 hourly wage rate provided by the contract for class C drivers. There was some discussion of whether Kapusta was actual- ly performing work at the Emerald site or just making de- liveries there. The parties agreed that because Kapusta was moving stone from place to place at the Emerald site, he should be paid at the contract rate for days when he deliv- ered to that site. The essence of the settlement finally agreed upon by the parties was that Respondent would pay Kapusta all monies due for work performed under the NCMCA. The basic conflict in this case concerning the grievance settlement is whether Respondent agreed to pay Kapusta the NCMCA rate for work performed at the Carrick site. According to Ruscitto, no sites were specified in the settle- ment finally agreed upon. Kapusta testified that when the Carrick site was mentioned, Ruscitto nodded and Witouski said, "Okay." Rush testified on direct examination that he specified the Carrick, Emerald, and Kirby sites as being covered under the NCMCA and Ruscitto agreed to pay Kapusta the contract wage rate for work performed at those sites. However, on cross-examination, Rush retreated from his assertion that Ruscitto had specifically agreed to pay the contract rate for the Carrick site. Rush explained that Ruscitto had actually agreed only to the general prop- osition that all work covered by the NCMCA would be done at the contract wage rate. He also conceded that Rus- citto never specifically agreed that the Carrick site was cov- ered by the NCMCA. Instead, according to Rush, Ruscitto nodded his head, showing understanding of Rush's argu- ment. There is no showing that Ruscitto specifically agreed to pay Kapusta the contract rate for his work at Carrick. Rush testified that he only "assumed" that Respondent had agreed that the Carrick site was covered by the con- 235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract.2 During the grievance meeting, Rush asked Ruscitto whether McGal Coal Company, the company which had contracted with GAL to perform the work at Carrick, was a signatory to the National Bituminous Coal Wage Agree- ment. Rush never asked whether GAL's Carrick site em- ployees were covered by the NCMCA or any UMW con- tract. Ruscitto's testimony and documents produced by Re- spondent, consisting of permits issued by the Common- wealth of Pennsylvania establishing the C('arrick operation as a reclamation project, reveal that the Carrick site was not a coal mine operation as described in the NCMCA. Instead, GAL was removing coal from the site as an inci- dent to a reclamation project seeking to prepare the land for a housing development. In any event, in Respondent's view, all of GAL's employees at Carrick were covered by a contract with Local Union No. 66, International Union of Operating Engineers. GAL did not apply the NCMCA to its drivers when they worked at Carrick. 2. Analysis and conclusions The General Counsel contended that Respondent vio- lated Section 8(a)(5) of the Act by refusing to abide by the terms of the grievance settlement agreement regarding the Carrick site.3 Respondent GAL contended that it had fully lived up to the settlement agreement. I find that the evi- dence does not sustain the General Counsel's position. As I see it, there was no agreement reached concerning the Car- rick site. Granted, the parties agreed that work done on sites covered by the NCMCA would be paid at the con- tract wage rate. However, the record establishes that Re- spondent reasonably believed that its employees at the Carrick site were not covered by the NCMCA and did not say otherwise to the Union. The Union was misled only by its mistaken assumption that Respondent was agreeing to pay the NCMCA rate to Barry Kapusta for his work at Carrick. This error did not bind Respondent. There is no evidence showing that Respondent specifically agreed to pay Kapusta the contract rate for his work at Carrick, as General Counsel insists. In sum, there was no meeting of the minds as to Carrick. I find no ground for finding a violation of Respondent's bargaining obligation under the Act. The Company com- plied fully with its grievance settlement agreement. Ac- cordingly, I shall recommend dismissal of the allegation that the Company violated Section 8(a)(5) and (1) of the Act by refusing to comply with the terms of the grievance settlement. C. Alleged Interference, Restraint, and Coercion I. The facts On May 2, before the grievance meeting, Kapusta re- ! I have credited Rush's version of the conversation on cross and recross examination which in considerable part was corroborated bs Ruscitto. In contrast to Kapusta, who gave a skimp) account. Rush seemed more con- scientious about providing a frank and full account of the discussion. There- fore. I have rejected Kapusta's version to the extent it conflicts with Rush's testimony on cross-examination. See B. N Beard CompanY. 231 NLRB 191 !977) ceived a message to call Supervisor Andrew Witouski. When he reached him, Witouski said sarcastically, "Thanks a lot." Kapusta asked, "What for?" Witouski said, "You filed a grievance against us with the Union." On May 3, the day following the grievance meeting, Ka- pusta had two conversations with Witouski. The first con- versation occurred in the morning, in the presence of Re- spondent's corporate secretary. Anthony Ruscitto. When Kapusta entered the office, Witouski asked him why he had filed a grievance. Kapusta explained that he had not intended to file a formal grievance, but had wanted to re- solve the problem of his medical benefits. Later in the con- versation, Witouski said, "For a measly couple hundred bucks you almost lost your job." Later that day Witouski and Kapusta had another ex- change in the company driveway. Witouski was carrying a ball bat with which he had been hitting rocks. He ap- proached Kapusta and told him that he had made a lot of trouble for the Company by filing the grievance and said, "The next time you cause me any union problems, I am going to personally bust your nose." 4 I find from Kapusta's uncontradicted testimony that to- ward the beginning of June, Supervisor Ray Burow in- structed Kapusta to sign a form declaring his resignation from the Union. When Witouski joined the discussion Ka- pusta asked whether this action was being taken because of the grievance. Witouski replied that it was not, adding that the Company had decided to "lay some guys off from the UMW." Kapusta asked if the "layoff" involved everyone, including those employees working at the Carrick site. Wi- touski replied that it did. Kapusta hesitated about signing the form, after voicing fear of loss of his union medical benefits. Witouski telephoned Union President Rush, who assured him that the benefits would continue to apply to Kapusta and his family. Witouski passed this assurance on to Kapusta. Two days later, Kapusta signed the form and sent it to the Union. 2. Analysis and conclusions I find that Respondent violated Section 8(a)(l) of the Act on May 3, when Supervisor Witouski coercively inter- rogated and repeatedly threatened employee Kapusta re- garding his filing of a grievance. By asking Kapusta why he filed his grievance and then implying in the following re- mark that he had endangered his job, Witouski violated Section 8(a)( 1) of the Act. By this conduct Witouski coerced, restrained, and interfered with employee rights under Section 7 of the Act.5 Similarly violative of Section 4Witouski testified first that he did not recall threatening Kapusta for filing a grievance. When asked to explain what he meant by this answer, Wtouski became evasive and then denied ever threatening Kapusta. In contrast. Kapusta testified about these incidents in a full and forthright manner. Accordingly. I have credited Kapusta's account of this conversa- tion. Sec. 7 of the Act states: Employees shall have the right to self-organization, to form. join. or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or othcr mutual aid or protec- tion. and shall also have the right to refrain from any or all of such activities. 236 GAL CONSTRUCTION. INC. 8(a)(1) of the Act was Witouski's warning that Kapusta would suffer physical injury if he again filed a grievance against GAL. I also find that Respondent interfered with, restrained, and coerced Kapusta in the exercise of his rights guaran- teed by Section 7 to belong to a union when Supervisors Burow and Witouski ordered Kapusta to resign from the Union. Such conduct violated Section 8(a)( ) of the Act. D. The Alleged Discrimination 1. The facts On May 2, the date of the grievance meeting, GAL granted William Barr, GAL's other union driver, a wage increase of $1.43 an hour, raising his hourly pay from $6.50 to $7.93. This $7.93 hourly rate was the NCMCA rate for his class B driver classification prior to the most recent 14-cent cost-of-living increase. Barr received the wage in- crease in his next paycheck, on May 4, for the period from April 26 to and including May 2. Respondent's payroll computations for that payroll were completed and sent out of its office by noon on May 2. Kapusta, a class C driver, received no wage increase and continued at the $5.07 hourly rate he had received before the grievance meeting. Although the payroll department was authorized to pay Kapusta the $7.58 NCMCA hourly rate for class C drivers when he worked at sites covered by the contract, the payroll records indicate that he was not paid at this rate, except for the backpay from the grievance settlement regarding his work at the Emerald Mine. Thus, I find from the records that after May 2 Kapusta did not perform at any sites covered by the contract. 2. Analysis and conclusions The complaint alleges that from May 2, the date of the grievance meeting, to the date of Kapusta's last employ- ment with Respondent, Respondent refused to assign Ka- pusta to work covered by the Union and refused to pay him the contract wage rate. At the same time, according to the complaint, Respondent assigned such work and paid the contract rate to employee Bill Barr, whose work was similar to Kapusta's. The General Counsel has not substantiated the allega- tion of disparate assignment of work. On the contrary, Ka- pusta testified that following the grievance meeting Barr worked I day at the Emerald Mine while Kapusta worked 2 days at the same site. Turning to the remaining alleged discrimination, the rec- ord established that on May 2. the date of the grievance meeting, Respondent granted Barr a wage increase of $1.43 per hour. while Kapusta continued at his previous wvage rate. The General Counsel contended that by paying Barr at the contract rate, while continuing to pay Kapusta at his " The record is not clear on thl mlltier. Although Kaiputa testIlcd thai he worked 2 davs at the f merald Mine, it is unclear hether he a., mnercl\ delivering to the site (in which case his normal wage rate vsould he p lid or whether he was making several stops in the site iin ihich case ithe (( MCA rate would apply). much lower rate, the Company discriminated against Ka- pusta in violation of Section 8(a)( 3 ) and (I) of the Act. GAL argued that it awarded the wage increase to Barr and withheld a wage increase from Kapusta after assessing the relative merit of each employee's job performance. I find merit in the General Counsel's contention. Contrary to GAL, I find that the Respondent denied Kapusta a wage increase in retaliation for his gnevance. Kapusta filed his grievance and pressed it to resolution. Respondent knew of this activity and expressed hostility toward such activity on the morning of the grievance meet- ing and later, on May 3. No such hostitlity was directed at Barr., who did not file a grievance, and who received a $1.43 hourly wage increase, in hand, 2 days after the grievs- ance meeting. The record shows that as late as noon on May 2, Respondent could have made and implemented its decision to give Barr that increase. Kapusta, who filed the grievance, received no increase and was the target of Witouski's hostile remarks early that same day. Thus. I find ample evidence to support the General Counsel's posi- tion. The Company attempts tojustify its disparate treatment of Kapusta by arguing that Barr's raise was a ment in- crease, granted because Barr had a better driving record and could handle more kinds of equipment than Kapusta. I find this argument unconvincing. Ruscitto testified that Barr first asked for a wage increase some time in April and that he decided to grant the request based on Respondent's need of Barr's services and the possibility that Barr would go elsewhere if he did not receive a raise. However, Re- spondent leaves unexplained the timing of the implementa- tion of the request and the concomitant neglect to accord Kapusta a comparable wage increase as a class C driver. This element, together with Respondent's expressions of hostility toward Kapusta's grievance, persuade me that Re- spondent rewarded Barr for withdrawing from the griev- ance proceeding and punished Kapusta because he pressed his grievance. Thus, I find that by discriminating against Kapusta by not granting him the contractual pay rate due his classification because he filed the grievance under a collective-bargaining agreement. the Company violated Section 8(a)(3) and (I ) of the Act. CON(I. USiONS OF I.AW I. Respondent GAL Construction, Inc., is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America. l.ocal 1846, is now, and at all times material herein has been. a labor organization within the meaning of Section 2 5) of the Act. 3. Respondent did not violate Section 8(a) 5) and (I ) of the Act by refusing to abide by the terms of a grievance settlement agreement. 4. By interrogating Barry Kapusta regarding his filing of a grievance. by threatening him with discharge and physi- cal harm if he continued to file grievances. and by ordering him to resign from the Union. Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engag- 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing in unfair labor practices violative of Section 8(a)(1) of the Act. 5. By discriminating against Barry Kapusta regarding his rate of pay because of his filing a grievance, Respon- dent has committed an unfair labor practice violative of Section 8(a)(3) and (1) of the Act. 6. Respondent did not violate Section 8(a)(3) and (1) of the Act by refusing to assign work covered by a collective- bargaining agreement to Barry Kapusta. 7. Respondent did not otherwise violate the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having further found that Respondent denied a wage increase to Barry Kapusta because he engaged in protected union activity, I will also recommend that Respondent be ordered to make him whole for his loss of earnings suffered as a result of that discrimination from the date of such denial until the date on which the appropriate wage in- crease becomes effective, together with interest thereon to be computed in accordance with the policy set forth in Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER7 The Respondent, GAL Construction, Inc., Charleroi, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their filing of grievances. (b) Threatening its employees with physical violence, loss of employment, or other reprisals because they en- gaged in union activity or because they filed grievances pursuant to a collective-bargaining agreement. (c) Ordering employees to resign from United Mine Workers of America, Local 1846, or any other labor orga- nization. (d) Discriminating against employees with regard to rates of pay or other conditions of employment because they have filed grievances pursuant to a collective-bargain- ing agreement. (e) In any other manner interfering with, restraining. or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make Barry Kapusta whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in The Remedy of this Deci- sion. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this recommended Order. (c) Post at its Charleroi, Pennsylvania, plant copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. s In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to give evidence, the National Labor Relations Board found that we violated the National Labor Relations Act and ordered us to post this notice. We intend to abide by the following: The National Labor Relations Act give all employees the following rights: To organize themselves. To form, join, or help unions. To choose a union to represent you in bargaining with us. To act together for your common interest or pro- tection. To refuse to participate in any or all of these ac- tivities. WE WILL NOT interfere with your rights. WE WILL NOT interrogate you concerning your activi- ties in support of the United Mine Workers of Amer- ica, Local 1846, or any other union, including the fil- ing of grievances under a collective-bargaining agreement. WE WILL NOI threaten you with loss of job, physical 238 GAL CONSTRUCTION, INC. violence, or other punishment for engaging in union activities, including the filing of grievances. WE WILL NOT order you to resign from the United Mine Workers of America, Local 1846, or any other union. WE WILL NOT discriminate against you in your wage rate, or in any other manner, because you engaged in union activity, including the filing of grievances. WE WILL pay Barry Kapusta the wages he lost be- cause of our discrimination against him for filing a grievance with United Mine Workers of America, Lo- cal 1846. GAL CONSTRUCTION, IN( 239